Physical intervention in schools: guidance

Introduction

‘Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.’

(Article 19, United Nations Convention of the Rights of the Child)

1. This guidance forms the third part of the Included, Engaged and Involved series and should be read alongside Part 1: promoting and managing school attendance and Part 2: preventing and managing school exclusions. This guidance replaces the advice on physical intervention and seclusion in part 2. Its purpose is to improve children and young people’s learning experiences in school by:

• promoting positive relationships, behaviour and wellbeing;
• minimising the use of restraint and seclusion and eliminating their misuse;
• ensuring children and young people’s rights are understood, respected and complied with in all decisions around the use of physical intervention, restraint and seclusion.

2. This non-statutory guidance applies to all education authority, grant-aided and independent schools in Scotland. There is an expectation that education authorities, the managers of grant-aided schools and the proprietors of independent schools will, with the input of trade unions, use this guidance to review and revise existing local policies on the use of physical intervention, restraint and seclusion. These “education providers” should ensure all staff are aware of this guidance and the local policy on physical intervention, which should include details of how the use of restraint and seclusion will be minimised.

3. The guidance reflects the application of the different legal frameworks for education authority, grant-aided and independent schools. Where advice and legislation apply to all three, they are collectively referred to as “education providers”. Where the application differs, references are made to the relevant type/s of schools. The term “public authorities” is used in the Human Rights Act 1998 and the UNCRC (Incorporation) (Scotland) Act 2024 and is explained, in the context of this guidance, in Annex C. If there are any ambiguities in the application of the different legal frameworks for grant-aided and independent schools, they may wish to take legal advice.

4. Physical intervention, restraint and seclusion are defined as:

• Physical intervention: Physical contact carried out with the purpose of providing support to or preventing the actions of a child or young person.
• Restraint: An act carried out with the purpose of restricting a child or young person’s movement, liberty and/or freedom to act independently.
• Seclusion: An act carried out with the purpose of isolating a child or young person, away from other children and young people, in an area from which they are prevented from leaving.

5. In light of the legal implications associated with the use of restraint and seclusion, education providers should take legal advice on the use of any practices falling within the definitions of restraint and seclusion outlined in this guidance when reviewing and revising their physical intervention policies. As part of this process, it is important that education providers reflect on the definitions and key features of restraint and seclusion within this guidance and review the use of any practice, irrespective of its name, that could amount to restraint or seclusion.

6. The guidance promotes best practice in ensuring all children and young people are safe and protected within a nurturing environment where additional support needs are provided for and well understood. The guidance outlines the preventative approaches that should be in place to minimise the use of restraint and seclusion and outlines alternative strategies that can be used in their place. Where restraint is used, the guidance offers best practice advice on rights-based decision making and gives examples of the necessary safeguards that must be in place to ensure lawful practice and protect the wellbeing of children and young people and staff. The guidance reflects education providers’ duty of care to children and young people and staff in relation to their health, safety and wellbeing. Finally, the guidance offers advice on post-incident support for children and young people and others involved and outlines expectations for reporting, recording and monitoring the use of restraint and seclusion.

7. The guidance contributes to the delivery of the Scottish Government’s national outcomes for children and young people, education, health and human rights.

The need to minimise the use of restraint

8. The need for the UK to “adopt appropriate measures to eradicate the use of restraint for reasons related to disability within all settings” was noted by the UN Committee on the Rights of Persons with Disabilities in 2017.

9. The Children and Young People’s Commissioner Scotland’s “No Safe Place” report, published in 2018, highlighted inconsistencies in the definitions of restraint and seclusion in local policy and practice, and the lack of a standard approach for recording incidents. The importance of addressing the children’s rights implications of restraint and seclusion in Scotland’s schools was again highlighted within ENABLE Scotland’s “In Safe Hands?” Campaign. In both reports, children and young people highlighted the trauma they suffered as a result of restraint and seclusion in school. They also highlighted that children and young people with additional support needs are more likely to be subject to the inappropriate use of restraint and seclusion.

10. In 2019, the Equality and Human Rights Commission published their Human Rights Framework for Restraint, which sets out advice for policy makers on the human rights implications of using restraint and seclusion.

11. In 2020, the Independent Care Review published seven reports forming The Promise, which includes the following commitment:

“Schools in Scotland must also not exacerbate the trauma of children by imposing consequences for challenging behaviour that are restrictive, humiliating and stigmatising. This includes seclusion or restraint…”

12. Similarly, the Additional Support for Learning Review, published in 2020, emphasises that “early intervention and preventative approaches reduce the need to consider exclusion, physical intervention and seclusion…”

13. This guidance seeks to address these issues and provide clarity on best practice for Scotland’s schools. Minimising the use of restraint in schools is possible. An example of a school’s journey away from the use of restraint is included on Education Scotland website^..

Children and young people’s rights

14. The United Nations Convention on the Rights of the Child (UNCRC) sets out the fundamental rights and freedoms of all children and young people. The Scottish Government is committed to Scotland being the best place in the world for a child to grow up.

15. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (“the 2024 Act”) intends to deliver a proactive culture of everyday accountability for children’s rights (up to the age of 18) across public services in Scotland. Since July 2024, it has been unlawful for public authorities to act incompatibly with the incorporated UNCRC requirements when acting under powers conferred by or under Acts of the Scottish Parliament or common law. The 2024 Act gives children, young people and their representatives the power to go to a court or tribunal to enforce their rights.

16. The UNCRC forms the basis of our national approach for supporting children, Getting it right for every child (GIRFEC). Under the 2024 Act, the use of restraint and seclusion on children and young people have significant implications for their rights, in particular with respect to the following incorporated articles:

• Article 2 (non-discrimination)
• Article 3 (the best interests of a child)
• Article 12 (respect for the views of the child)
• Article 19 (protection from violence, abuse and neglect)
• Article 23 (children with a disability)
• Article 24 (health and health services)
• Article 28 (right to education)
• Article 29 (aims of education)
• Article 37 (inhumane treatment and detention)
• Article 39 (recovery from trauma and reintegration)

17. Relevant legal safeguards are also included in the European Convention on Human Rights (“ECHR”, which is incorporated into law by the Human Rights Act 1998). In particular:

• Article 3: Freedom from torture and inhuman or degrading treatment
• Article 5: Right to liberty and security
• Article 8: Respect for private and family life, home and correspondence
• Article 14: Protection from discrimination

18. Furthermore, the provisions of the Equality Act 2010 (“the 2010 Act”) and the United Nations Convention of the Rights of Persons with Disabilities are relevant to practice in this area (see Annex C).

19. This human rights framework is the basis for the best practice advice in this guidance.